2018 PLP 2532 (YLR)

M. TABASSUM AFTAB ALVI, C.J.

The captioned petition has been moved for quashment of the impugned FIR No.62/2017, dated 12.04.2017, registered against applicants at Police Station, Khuiratta, upon the application of Abdul Aziz, complainant, in offences under sections 10, 11, 16 and 19, ZHA. It is averred in the application that petitioner No.1, contracted marriage to petitioner No.2, with her free consent on 08.04.2017, through a registered 'Nikahnama' Annexure "A"; however, the aforesaid FIR was registered against petitioners with mala fide intention; therefore, craved that by accepting the instant application, the aforesaid FIR may be quashed. The application was resisted by complainant-respondent No.4, through filing objections on 31.01.2018 and prayed that by accepting the same, quashment application may be dismissed.

2. Muhammad Khalid Naqshbandi, the learned Counsel for petitioners, vehemently submitted that petitioner No.1, being a sui-juris lady contracted 'Nikah' with petitioner No.2, as per her free consent, on 08.04.2017, whereas the impugned FIR was got registered by complainant on 12.04.2017, with mala fide intention. He pointed out that petitioners are living as husband and wife, and they have also a suckling baby from their wedlock. The learned Counsel contended that as petitioners are living as husband and wife, and they have admitted the factum of their legal marriage; therefore, in view of their assertions, the offence of 'Zina' does not attract, hence, by accepting the instant quashment application, the impugned FIR may be quashed. He, in support of his arguments, placed reliance upon the following case law:-- i. Ashfaq-ur-Rehmah and another v. SHO Police Station, Thothal and 2 others [2016 SCR 1068]. ii. Qamar Pervaiz and another v. State through Advocate General and 2 others [2017 PCr.LJ Note 200, p.210].

3. Conversely, Mr. Saqib Javaid, the learned Counsel for complainant-respondent No.4, submitted that although 'Nikah' of petitioners solemnized on 08.04.2017, however, the report of missing of petitioner No.1, was registered on 07.4.2017 and F.I.R. was lodged on 12.04.2017; hence, the report was lodged timely. He emphasized that petitioners committed 'Zina' in between time from 7th to 8th April, 2017; therefore, they may be proceeded under law and FIR may not be quashed. The learned Counsel finally prayed for dismissal of quashment petition.

4. Raja Ayyaz Ahmad, the learned Asst.A.G appearing on behalf of the State/Respondents Nos. l to 3, owned and supported arguments raised by the learned Counsel for complainant.

5. After hearing the learned Advocates for parties, I have given my due consideration to the arguments addressed at Bar and gone through the record with utmost care.

6. The matter in hand pertains to quashment of FIR No.62/2017, dated 12.04.2017, registered against petitioners at Police Station, Khuiratta, upon the application of Abdul Aziz, complainant, in offences under sections 10, 11, 16 and 19, ZHA.

7. At the very outset, it would be pertinent to observe here that under provisions of section 561-A, Cr.P.C, 1898, this Court has inherent power to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by this Court at any time. In exceptional cases this Court can exercise its powers under section 561-A, Cr.P.C., without waiting for trial Court to pass orders under sections 249-A or 265-K, Cr.P.C., 1898, if the facts of the case so warrant to secure the ends of justice. The words "or otherwise to secure the ends of justice" clearly empowers this Court to exercise its inherent powers available under section 561-A, Cr.P.C. at any stage to do complete justice. Even otherwise, it is well settled principle of law in such like cases that if free hand to the police to play havoc with the life, honour and liberty of citizens and to use it as a lever to commit atrocities on innocent citizens under the garb of investigation, is allowed to apply, then jurisdiction of this Court would become redundant and citizens would be left at the mercy of police.

8. It would not be out of place to observe here that ordinarily this Court does not interfere in the investigation of a criminal case; however, if the Court comes to a conclusion that accused is innocent and probability of his/her conviction is impossible, then this Court can quash an FIR or proceedings, while exercising powers available under section 561-A, Cr.P.C. The aforesaid view finds support from a case reported as Ashfaqur-Rahman and another v. SHO Police Station, Thothal and 2 others (2016 SCR 1068), wherein, it was held as under:-- "Before dilating upon the merits of the case, it may be observed here that quashing of a criminal case under section 561-A, Cr.P.C. is an extraordinary remedy which can be invoked only in exceptional circumstances, i.e. when no case is made out against the accused, when no probability of conviction of the accused is existed or when there is sheer abuse of the process of law. If such extraordinary circumstances exist, the Shariat Court under section 561-A, Cr.P.C. can quash the FIR or even proceedings for that matter."

9. Adverting to the instant case, petitioner No.1, Mst. Saadia Aziz, solemnized marriage to petitioner No.2, with her free consent, on 03.04.2017, through a registered 'Nikahnama Annexure "A", which factum is also admitted by her before this Court. The petitioners are living as husband and wife, and from their wedlock a baby has also born. Therefore, in presence of their registered 'Nikahnama' dated 08.04.2017, the offence of 'Zina' cannot be said to have been committed. The aforesaid view is fortified from a case reported as Qamar Pervaiz and another v. State through Advocate General and 2 others 2017 PCr.LJ Note 200, P.210, wherein, it was observed as under:-- "A perusal of the FIR as well as the other record reveals that no one else is claiming the hand of Appellant No.2 and in the presence of a valid 'Nikah', which is admitted by both the appellants, registration of the case under the provisions of 'Zina' Ordinance was not justified. It is the duty of the Court to protect the family life in genuine cases. We are conscious of the fact that police cannot be restrained from performing its statutory duty of investigation of the cases registered in cognizable offences but the fact remains that when the parties are husband and wife, their version is supported by duly registered 'Nikahnama' and there is no counter version regarding 'Nikah', then in such circumstances, the offence of 'Zina' cannot be said to have been committed and registration of the case as well as continuation of investigation in such circumstances can safely be termed as mala fide and without lawful authority."

10. It is well settled principle of law that each and every case has its own peculiar facts and circumstances, hence, it should be judged in light of its peculiar facts. As discussed above, petitioner No.1, has categorically admitted her 'Nikah' with petitioner No.2; therefore, their Nikah dated 08.04.2017, is valid and proceedings initiated against petitioners through the impugned FIR are accordingly liable to be quashed.

11. The upshot of above discussion is that by accepting the instant quashment application, the impugned FIR No.62/2017, dates 12.04.2017, registered at Police Station, Khuiratta, District Kotli, against petitioners, on the application of complainant-respondent No.4, in offences under sections 10, 11, 16 and 19, ZHA, stands quashed. HBT/6/Sh.C(AJ&K) FIR quashmed.